The U.S. Court of Appeals for the District of Columbia issued a blow to the Federal Aviation Administration (FAA) last week when it vacated the portion of a 2015 FAA Rule requiring registration of model aircraft.
On December 14, 2015, the FAA announced a new Rule requiring registration of small unmanned aircraft systems (UAS) weighing more than 0.55 pounds and less than 55 pounds. Effective December 21, 2015, the Rule required owners of small UAS, including those operated strictly as model aircraft, to complete a registration process. The registration process, which costs $5, assigns a registration number that must be attached to the model aircraft. Those who fail to register are potentially subject to civil and criminal penalties, including up to three years' imprisonment.
Shortly after the Rule was issued, a D.C. model aircraft hobbyist filed an action against the FAA, alleging that the Rule violated § 336(a) of the FAA Modernization and Reform Act (Act). On May 19, 2017, the U.S. Court of Appeals for the District of Columbia agreed. The court granted the hobbyist’s petition and vacated the Rule to the extent it applies to model aircraft.
Section 336(a) of the Act states:
In General.--Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if--
(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).
The court’s analysis was terse, “[T]he 2012 FAA Modernization and Reform Act provides that the FAA 'may not promulgate any rule or regulation regarding a model aircraft,' yet the FAA's 2015 Registration Rule is a 'rule or regulation regarding a model aircraft.' Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft."
The court rejected the FAA’s plea that the Rule was in keeping with the Act’s directive to “improve aviation safety.” In response, the court noted, “Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.”
With that, the court vacated the Rule, to the extent it applies to model aircraft. It now appears that Congress must act if compulsory registration for model aircraft is to continue. The FAA may seek a petition for rehearing en banc, which would delay enforcement of the court’s order.
Apparently, the FAA is not yet willing to concede. As of today, the FAA’s website contains the following message:
We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. We are in the process of considering our response to the decision as well as any registration implications for non-commercial users. Please check this website regularly for further updates and instructions.
In the meantime, we encourage registration for all drone operators.
We will keep you posted!
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